Guide to Trust and Will Contests
Losing a loved one is a challenging and emotional time. If you’re named in their will or trust, you may have questions about your role or what you’re entitled to. Keystone’s expert probate lawyers can help. Our trust and will attorneys can help whether you’re contesting a will or trust, defending against a will contest brought by others, or want to ensure that your rights regarding a loved one’s trust or will are protected.
If you suspect your loved one was coerced or pressured into changing their trust documents or you were wrongfully left out of a will, you may have grounds to contest it. Your circumstances are already trying, so our expert legal representation is here to share the burden and provide you with the best possible outcome. As one of the largest probate law firms, we will provide you with the best chance of success when defending or challenging a will or trust. Contact us today to schedule a free consultation.
We’ll answer these questions and more in the following guide to trust and will contests. Reach out to the team at Keystone Law Group for more information today.
Yes, both wills and trusts can be contested.
A will, also called a last will and testament, was once the primary legal document used to communicate the final wishes of a person regarding the distribution of their property.
Although a will still plays a role in a modern estate plan, a trust, also called a revocable living trust, is now the legal document most commonly used by individuals and married couples to communicate their final wishes in the event of incapacity or death.
When disputing a will or trust, you bring what is called a contest, which can take a variety of forms. Having the guidance of an experienced trust and will contest lawyer can help you navigate this complex process.
When someone says they are contesting a will or trust, it usually means they are asking the court to invalidate the document. Common scenarios we see in these cases include:
When someone is disputing a will or trust, it may fall upon certain individuals, such as the executor or administrator of the will, trustee of the trust, or beneficiaries to defend against the contest. Common questions our trust and will contest attorneys answer for clients involved in such situations are:
Learn more about defending contests.
Certain categories of people can be automatically disqualified from being beneficiaries of wills or trusts. This is done to prevent vulnerable elders from being taken advantage of by people who have a unique opportunity to commit fraud and undue influence. Below are the types of people (along with their family members, employees and cohabitants) who may be considered “disqualified.”
Learn more about invalidating gifts to disqualified persons.
Certain family members of the deceased are entitled to an inheritance even if they are not named as beneficiaries in the will or trust. These persons can be spouses, children or unmarried couples.
Learn more about the rights of spouses, children and unmarried couples.
In trust and will contests, anyone belonging to one of the below categories would benefit from the counsel of an experienced will and trust contest attorney, who can not only help to navigate and streamline any necessary legal procedures, but also to enforce their rights.
An executor or administrator is the person appointed by the probate court to take charge of the decedent’s assets after death. We help executors and administrators get appointed by the probate court, submit the will and defend against any will contest.
It is no easy feat disputing a will or trust or defending against a contest. Luckily, Keystone’s will and trust contest attorneys have handled countless cases involving disputed estate documents. Our team has the enhanced knowledge and necessary experience to obtain the best possible outcome for your legal matter, as the following case studies illustrate.
While a parent has the right to disinherit a child, the way a child is disinherited can raise concerns. This was the case with a client who came to us after learning that he had been excluded from his mother’s trust, which named his sister as the only beneficiary.
The mother had executed the trust three days before her death when she had been in the ICU and was suffering from almost a dozen physical ailments. The sister’s argument centered on the mother’s competence when she had met with her estate planning attorney a month prior. Keystone’s argument centered on the mother’s capacity at the time she executed the trust.
Over the course of the three-day trial, Keystone’s trust contest lawyers demonstrated that the decedent had far less capacity during her time in the ICU than when meeting with her estate planning attorney. Ultimately, the court ruled in favor of Keystone’s client and invalidated the trust, allowing the client to obtain his rightful half of the trust assets.
When decedents leave “disqualified persons” (i.e., caregivers, interested drafters and fiduciaries) gifts in wills or trusts, the court presumes them to have been unduly influenced. It is up to the disqualified person to disprove the claim.
In one such case, Keystone’s client’s original share of 50% of the decedent’s assets had been reduced to $200,000 through a trust amendment that increased the share of the decedent’s fiduciary, which in this instance was his property manager, from 50% to 100% of the remaining assets.
After a multi-day trial, the court entered an order that not only invalidated the trust amendment, but also disinherited the property manager from the 50% share he was entitled to receive from the original trust. The decision ensured the property manager would not receive any interest and that all the assets would go to Keystone’s client.
Keystone’s trust contest lawyers also obtained a judgment for the client for $324,719.96 in attorney’s fees and costs against the property manager, who filed an appeal that he later lost.
At times, a person’s inheritance is tied to finding a signed will or trust that names them as a beneficiary.
A son came to us because his late father’s spouse was disputing the existence of a trust that the son believed named him as a beneficiary of his father’s share of the assets and that the son further believed was signed. The spouse argued that no trust existed and claimed that all of the decedent’s assets were community property, which should go to her.
At the time Keystone was hired, the client did not even have a copy of the trust. During the litigation, Keystone took the deposition of the decedent’s accountant who testified to having seen the signed version of the trust. At the spouse’s deposition, Keystone’s trust contest attorneys obtained her admission that the decedent had wanted to leave his share of the assets to his son.
Soon after, the spouse produced unsigned copies of the trust, which helped Keystone secure the client a favorable settlement that approximated the distribution he would have received had he won at trial.
The children of a decedent had always been told they would inherit the decedent’s assets. However, before he died, a trust amendment had been executed that left the decedent’s girlfriend his residence — the primary asset of his trust.
The previous version of the trust had only left the girlfriend a small cash gift.
Because the amendment was executed late in the decedent’s life when he was suffering from dementia and a variety of other health issues, concerns were raised about the amendment’s validity and whether the girlfriend may have exerted undue influence or committed financial elder abuse.
Keystone’s trust contest attorneys secured the client a favorable settlement consisting of half of the trust proceeds and equal authority over the sale of the home.
“In particular, I found Josh and [his associate] to be exceedingly pleasant to deal with. Their personal and professional demeanor telegraphed the virtues of our case. I found it personally very validating to have them as my representatives.”
“I am very appreciative of the service Keystone Law Group has provided me. I appreciate a law firm that is attentive and upfront with communication. Thank you for all of your help. I am glad that this is all over.”
“Considering probate and will/trust disputes make an already difficult situation with a loved one passing even more difficult, the attorneys and staff at Keystone Law did a lot to help me successfully navigate and manage the trust that I was overseeing.”
“When my mom passed away, I unexpectedly had issues with my sibling regarding my mother’s trust. I was referred to Keystone Law Group. First off, everyone you work with is smart, professional and nice. Response time was always quick and efficient. My lawyer Monica was incredibly smart, organized and easy to talk to about my concerns.”
“Hila diligently researched my questions regarding contesting the trust. She contacted the estate planner and secured the receipt of amendments one-four of the trust straightaway. She acquired requested real estate reports, which painted a picture of the remaining assets due to the fact there was no schedule of assets. The combination of these efforts laid a foundation upon which to decide to contest or not.
Ms. Golchet was prompt in her communication and followed through daily with the discussed tasks. Hila welcomed client input as to which direction to pursue, but also displayed her expertise in directing me to pertinent information. She communicated by email and phone daily regarding newly acquired information – many times in the evening after traditional work hours.
However, most impressive was the compassion with which Hila conducted our conversations. Potentially contesting a trust, necessitates exposing personal information. Hila was adept at teasing out information that would productively contribute to a solid contest of the trust, while graciously listening to difficult life events.”
Keystone Law Group specializes in probate law. Regardless of whether you are contesting a will or trust, defending against a will or trust contest, or enforcing your rights as a spouse or child, our trust and will contest attorneys have the necessary expertise to assist you. We’re proud to serve clients nationwide involved in will and trust contests in California and look forward to helping you with your legal matter.
Keystone’s lawyers focus exclusively on probate law to enhance the quality of legal services they provide to clients. Their specialized knowledge in the field of probate law enables them to challenge a will or trust or defend against a contest. Members of our team have received numerous accolades, including:
We specialize in will and trust contests in California, commonly serving:
If your county isn’t listed above, but your matter is in California, reach out to us to see if our will and trust contest lawyers may still be able to serve you.
In this section, you can find answers to many of the questions we receive from clients regarding trusts and wills. If you have further questions, feel free to contact our trust and will contest lawyers for assistance.
The cost can vary depending on the specifics of each case.
If you are a trustee defending against a trust contest, you may be able to utilize trust funds to defend the trust.
If you are the one bringing a contest, you will likely be charged at your will and trust contest attorney‘s hourly rate or on a contingency fee basis.
You might be able to shift attorney’s fees to the opposing side or recoup them as part of a settlement agreement or court decision, but it is rare for this to happen.
Consult with one of our will and trust contest lawyers to learn more about the costs involved.
Unfortunately, there is no concrete answer to this question.
Probate can potentially drag on for anywhere from a year to several years, but it’s also possible for the process to span just six months. It depends on the circumstances underlying your case.
Wills must undergo the formal probate process to be validated. Trusts do not go through probate, but the probate court is available to resolve trust disputes between trustees and beneficiaries.
More and more people are opting to execute trusts instead of wills since trusts are not subject to the probate process, and therefore, can be more cost-efficient and faster to administer. However, if a trust is contested, it can be several months to several years before any distributions are made, similar to when wills are contested.
If a decedent dies without having executed a will or trust, it means they died “intestate,” and assets will be distributed during the probate process in accordance with their state’s probate code. State probate codes will generally favor direct heirs (i.e., spouses and children), but if none exist, assets may go to other family members (e.g., parents, nieces and nephews).
There are occasions where undue influence and fraud are considered crimes. California’s Penal Code, for instance, criminalizes elder abuse.
Unfortunately, since criminal charges must be brought by the district attorney’s office, independent trust and will contest lawyers will not bring such matters but can assist the district attorney’s office by providing information and evidence to support a criminal charge.
If you believe a loved one to be subject to undue influence, fraud or elder abuse, report the suspected crime to your local police department or call an elder abuse hotline.
In certain situations, it is possible to get the opposing side to pay for your attorney’s fees.
Unfortunately, that is usually the exception rather than the rule. Most states abide by the American Rule, which states that opposing sides in legal matters must pay their own attorney’s fees.
Consult with our experienced will and trust contest lawyers to find out whether any exceptions apply to your case.
It depends on whether a will or trust contest is settled outside of court or goes to trial.
If a will or trust contest is settled early – during the discovery process or at mediation – the process may only last a few months.
If a settlement cannot be reached, the case will go to trial. A trial can be a multi-year process.
As a beneficiary or heir, you have a right to present evidence to the court in support of your claim that a will or trust is invalid.
For instance, if you were disinherited, you can have friendly witnesses testify and present documents to support the contention that the decedent did not, in fact, have a desire to disinherit you.
There are also several other reasons why a court may decide to invalidate a will or trust. Read our article below to learn more about the grounds for invalidating a will or trust.
A judge decides most probate court proceedings through what is called a “bench trial.” However, there are certain circumstances in which you could have a jury try your case.
Consult with our trust and will contest attorneys to learn more about what type of trial the specifics of your case call for.
Most of the time, you only have recourse if you are an heir or beneficiary. In other words, you must be someone who has legal standing and a financial stake in the outcome of the case.
If you do fall under the category of an heir or beneficiary, you can follow the usual steps for contesting a will or trust. If you fall outside of that category, you should consult with our will contest attorneys to see if you meet any of the grounds for filing a contest.
The court has a clear set of rules about who can bring a trust or will contest. The person challenging a will or trust must have “standing,” which means that they should have a financial stake in the outcome of the case. For example, if the terms of a new will provide you with more money or property than the prior version’s terms, you lack standing to contest the new will.
People with standing in trust and will dispute cases tend to fall under one of two broad categories:
An “heir” is a person who would inherit if a deceased person had no will or trust. A deceased person’s heirs are determined by the law of the state where the decedent resided. Pursuant to California inheritance laws, spouses and children are heirs. However, if the decedent had no spouse or children, then other family members (e.g., parents, siblings, uncles, aunts or cousins) are considered their heirs.
If a person who is an heir is not named as a beneficiary, or if their share is less than what they would have received if the decedent died without an estate plan, they will have standing to dispute the will or trust.
Those who are not heirs may also have a right to bring a will contest or trust contest, so long as they were named as a beneficiary in one of the decedent’s prior wills or trusts.
For example, a person named as a beneficiary in a prior version of a will or trust, but whose share was either eliminated or reduced in a subsequent version of the document, has standing to challenge the new will or trust, even if that person is not an heir.
Read more about a beneficiary’s standing to file a trust contest in probate court.
If it can be proven that one of the below scenarios occurred when executing a will or trust, then the court will invalidate the document.
An influencer uses excessive persuasion to convince someone to make changes to their estate plan.
A person lacks the mental capacity to create or execute a will or trust.
In the context of trust and will contests, elder abuse occurs when financial, psychological or physical abuse is inflicted on a vulnerable elderly person and plays a role in the signing of a new will or trust.
Fraud occurs when the creator of a will or trust is deceived into changing or executing the document.
Forgeries occur when a document is signed fraudulently by someone other than the person whose signature appears on it.
The protocol for the execution of a will or trust must be followed to a tee; otherwise, the will or trust may be contested for lack of due execution.
A will or trust is rarely invalidated because of a mistake; when an error does occur, it’s usually because a person executed a will or trust thinking it was some other kind of document (e.g., a deed).
If the decedent revoked the will or trust (i.e., destroyed, modified or replaced it with a new valid document), then it can be determined invalid.
Any experienced trust and will contest attorney will tell you that no-contest clauses cannot stop you from filing a contest, and they are not as scary as they seem.
A no-contest clause (also called an in terrorem clause) seeks to penalize beneficiaries who contest a will or trust by disqualifying them from receiving the money or property they were left. The clause was ordinarily used against beneficiaries bringing contests, but it has been expanded to include beneficiaries who unsuccessfully resist contests.
At the outset, it is important to point out that contesting a will or trust with a no-contest clause is meaningless if the person bringing the contest receives nothing under the new will or trust. If they are already receiving nothing, then they have nothing to lose. Only for beneficiaries who are left some portion of a decedent’s assets under the will or trust they are contesting would a no-contest clause be a deterrent.
When no-contest clauses do apply, they are difficult to enforce. In 2011, new laws went into effect that made California’s no-contest clauses harder to enforce than they already were.
Before you can decide whether to file a contest, you will need to see a copy of the will or trust. Executors are required to file wills with the probate court. Trustees are required to send all trust beneficiaries and heirs a Notification by Trustee, which will either include a copy of the trust or give the beneficiary the right to request a copy from the trustee.
Unfortunately, executors and trustees don’t always fulfill their responsibilities to beneficiaries. An experienced trust and will contest attorney can help obtain will and trust documents rather quickly, should it become necessary to do so.
Because there is a public policy in favor of the speedy resolution of estates and trusts, the time limits for contesting a will or trust are typically much shorter than statutes of limitations in other areas of the law.
The amount of time you have to contest a will varies based on whether the will has been “probated.” If a will has been “probated,” it means that the probate court has accepted it. It is substantially more beneficial to contest a will before the petition for probate has been approved.
The time limit to contest a trust, as described in Probate Code section 16061.7, is 120 days after a Notification by Trustee and a copy of an irrevocable trust has been provided to you.
Because the time limits are so short, your best bet is to determine whether a will or trust contest is needed, and if one is, to file promptly. Our will contest attorneys can help streamline this process.
Complicated legal matters requiring a firm grasp of the law are likely to arise when defending contests, which is why you should have a will or trust contest attorney in your corner. Read on to find out more about the factors involved in defending contests.
It is common knowledge that executors and trustees owe fiduciary duties to beneficiaries. But during a will or trust contest, do they owe these duties to the beneficiaries of the new will or trust — or to the beneficiaries of the prior will or trust? Additionally, what laws apply specifically to trustees?
Wills and trusts are presumed valid unless proven otherwise. As a result, executors and trustees owe fiduciary duties to the beneficiaries under the latest version of the will or trust. This does not mean that executors and trustees should simply disregard a pending contest and distribute the assets; rather, they should safeguard the assets until the contest is resolved.
What if the trustee is also a beneficiary who benefits from the new trust? Can they use trust funds to hire a trust contest lawyer to defend against the contest? When should a trustee stay out of it and allow the beneficiaries to quarrel among themselves?
While the answers to these questions vary based on the precise terms of each will or trust and the circumstances underlying each case, the general rules are:
Trustees should also be aware of the limitations of the attorney-client privilege when they use trust funds to defend against trust contests. These limitations apply, even if the trust expressly states otherwise.
The rights of beneficiaries during a will contest or trust contest vary based on whether they are beneficiaries of the prior will or trust or the new one, and on whether they choose to participate in the contest.
As a beneficiary of a will or trust that is being contested, you typically will have to wait until the contest’s outcome before you can receive your inheritance. But, if you are entitled to an inheritance regardless of the outcome of the dispute (i.e., you are a beneficiary under both the new and prior versions of the will or trust), the undisputed portion of your share should be distributed to you without your having to wait for the contest to resolve.
If there is already a person who is either bringing or defending a contest, such as another beneficiary, executor or trustee, you may believe it is a wise choice to sit on the sidelines. And why not? If someone else has already hired a will contest lawyer and is contesting the will, you can potentially reap the awards of a successful outcome without footing any of the legal bill or doing any of the work.
These beneficiary freeloaders, as we like to call them, could be wrong for several reasons:
Trust and will contest attorneys can help identify and invalidate gifts to disqualified persons. Below are some of the factors legal counsel will consider when evaluating your case.
When a beneficiary is considered a “disqualified person,” such as the drafter of a will or trust, a fiduciary or a caregiver, it will be up to them to prove they did not commit undue influence or fraud if they would like to receive the property they were left.
The purpose of Probate Code section 21380 is to protect elderly persons from certain individuals who are in a unique position to obtain gifts through fraud, menace, duress or undue influence. Read more about California caregiver laws.
Yes, exceptions exist to this rule.
One of the more common exceptions applies when a “disqualified person” was either related to or living with the decedent.
Another exception allows for the use of a “certificate of independent review,” a document an independent attorney signs after counseling the decedent on the consequences of leaving a gift to a disqualified person and determining that undue influence or fraud did not play a role in their decision. To find out if other exceptions apply, speak with our trust and will contest attorneys.
Disqualified persons who are unable to disprove committing undue influence or fraud are subject to harsh penalties, which can include both:
When spouses, children and unmarried couples are left out of a will or trust, they may still be able to obtain an inheritance, depending on their individual circumstances. Will and trust contest lawyers can help clarify what their rights are and enforce them.
California is a community property state, which in most cases, means that any assets acquired or debts incurred over the course of a marriage belong equally to both spouses, regardless of who is responsible for bringing in the assets or running up the debts. As a result, half of all community property acquired during marriage automatically belongs to the decedent’s spouse and cannot be disposed of by the decedent’s will or trust.
Sometimes, a decedent’s will or trust may overreach and attempt to dispose of the community property that legally belongs to the spouse. In those cases, it is essential that the spouse retains a trust and will contest attorney to ensure their community property rights are preserved.
Some spouses are excluded as beneficiaries from wills or trusts, not because the deceased did not want them to receive an inheritance, but because they married the decedent after the will or trust had already been signed. The courts will almost always allow a spouse who has been accidentally omitted from a will or trust (called a pretermitted spouse) to receive an inheritance.
Just as there are pretermitted spouses, there are pretermitted children – children who have been inadvertently left out of a will or trust because they were born either (1) after the document had been executed or (2) before the document had been signed, but the decedent was either unaware of the child’s birth or believed them to be deceased.
In certain states, including California, non-married couples may have certain contractual rights to receive each other’s money or property if it can be shown that they had an understanding or agreement to continue to provide for each other in the event of one partner’s death.
For example, if non-married persons live together and agree to provide financial support to each other for life or promise to leave property to their partner upon their death, these can be enforceable claims. These claims are sometimes referred to as Marvin actions after the seminal holding in Marvin v. Marvin (1976) 18 Cal.3d 660.